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2013 DIGILAW 473 (CAL)

Puspa Dey v. Jayanta Kumar Dey

2013-07-22

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. This application for review has been filed against the judgment and order dated October 5, 2010 passed by this Bench in C.O. No.123 of 2009 thereby affirming the concurrent findings of the Courts below as to maintaining status quo order in respect of the suit property during the pendency of the suit in a matter for temporary injunction. The plaintiffs/opposite parties herein instituted a suit being Title Suit No.193 of 2008 before the learned Civil Judge (Junior Division), Barasat for declaration of title and permanent injunction in respect of the suit property as described in the schedule to the plaint. They prayed for temporary injunction along with a prayer for ad interim injunction. The plaintiff and the defendant no.1 are the full brothers and they jointly purchased the land in suit measuring 16 decimals of land in suit in 1973. The plaint does not disclose that the plaintiff had sold his half share therefrom though the defendant no.1 had claimed that the plaintiff had sold his share to the son of the defendant no.1 in 1991. Upon consideration of the application for temporary injunction and its written objection, the learned Trial Judge directed both the parties to maintain status quo of the suit property till the disposal of the suit. Being aggrieved by the said order of the learned Trial Judge, the defendants preferred a misc. appeal which was also dismissed on contests affirming the order of the learned Trial Judge. Being aggrieved by the said order, the defendants preferred the C.O. No.123 of 2009 which was also dismissed by this Bench. Then this application for review has been preferred by the defendants. Mr. Gopal Chandra Ghosh, learned Advocate appearing for the applicants for review, has contended that the findings of the revisional court is wrong in view of the fact that the applicants had made construction up to the roof level on their own land after purchase and such construction has no connection of the suit property at all. The developer has invested huge money and so, if the order of status quo is maintained, they would be seriously prejudiced. In support of his contention, he has referred to the decision of Mandali Ranganna & ors. v. T. Ramachandra & ors. The developer has invested huge money and so, if the order of status quo is maintained, they would be seriously prejudiced. In support of his contention, he has referred to the decision of Mandali Ranganna & ors. v. T. Ramachandra & ors. reported in (2008) 11 SCC 1 and thus, he has contended that when huge building materials have been collected and huge expenditure has been incurred by the defendants, the order of injunction is not proper. He has also contended that the site of the construction of the applicant is completely different from the suit property and this fact has not been considered at all. So, the order of injunction should be vacated. The learned Advocate for the opposite party has supported the findings. Having considered the submissions of learned Advocates of both the sides and on perusal of the materials on record, this Court has clearly observed that there is a concurrent finding of the Courts below that the plaintiffs have established prima facie case to go for trial and that there is no clear evidence as to partition, though the applicants claim amicable partition. Anyway, at the instance of the defendants, a Commissioner was appointed for holding an inspection, but, the plaintiff did not agree with the defendants as to the identity of the suit property. These are the concurrent observations of the Courts below in this respect. Thus, I find that the learned District Judge in his judgment and order has clearly indicated that the identification of the suit property is a matter of dispute. Since a prima facie case to go for trial has been established and the urgency has been proved by the fact that huge building materials have been collected to raise multi-storied building by the developer, if the injunction is not granted and if the developer is able to raise the multi-storied construction, it will be difficult and may be even impossible for the plaintiffs to recover possession. That is why while disposing of this revisional application, this Bench has held that the object of granting injunction is to keep the property in status quo during the pendency of the suit in such circumstances. That is why while disposing of this revisional application, this Bench has held that the object of granting injunction is to keep the property in status quo during the pendency of the suit in such circumstances. The learned Trial Judge has recorded that without taking evidence, the dispute between the parties cannot be solved as to the identity of the suit property and so, if the order of status quo is not granted, there may be possibilities of inviting multiplicity of suits and proceedings. Accordingly, the concurrent findings of the Courts below have not interfered with in exercising the revisional jurisdiction by this Bench. So, the application for review does not satisfy any of the conditions under Order 47 Rule 1 of the C.P.C. Mr. Gopal Ghosh has submitted a written agreement over review, but on perusal of the same, it appears that as if this Bench is hearing an appeal over the judgment passed by this Bench. Review is not an appeal in disguise. There is no error or mistake apparent on the face of the record. This being the position, I am of the view that the application for review is totally devoid of merits and that there is no scope of entertaining this application for review. Accordingly, the application for review stands dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.